California Civil Jury Instructions (CACI) (2017)

1242. Affirmative Defense - Exclusion of Implied Warranties

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1242.Affirmative Defense—Exclusion of Implied Warranties
[Name of defendant] claims that [he/she/it] is not responsible for any
harm to [name of plaintiff] because [name of defendant] eliminated any
implied representations relating to [the quality that a buyer would
expect from the [product]] [or] [the [product]’s fitness for a particular
purpose]. To succeed, [name of defendant] must prove:
[Insert one or more of the following:]
[That the sale of the [product] included notice using words such as
“with all faults,” “as is,” or other language that would have made a
buyer aware that the [product] was being sold without any
[That, before entering into the contract, [name of plaintiff] examined
the [product/sample/model] as fully as desired and that a complete
examination would have revealed the [product]’s deficiency.]
[That [name of plaintiff] refused, after a demand by [name of
defendant], to examine the [product/sample/model] and that such
examination would have revealed the [product]’s deficiency.]
[That the parties’ prior dealings, course of performance, or usage
of trade had eliminated any implied representations.]
New September 2003
Sources and Authority
• Exclusion or Modification of Implied Warranties. California Uniform
Commercial Code section 2316.
• The California Uniform Commercial Code Comment to this section states:
“Disclaimer of the implied warranty of merchantability is permitted under
subsection (2), but with the safeguard that such disclaimers must mention
merchantability and in case of a writing must be conspicuous.”
• The California Uniform Commercial Code Comment to section 2316 states:
“Unlike the implied warranty of merchantability, implied warranties of fitness
for a particular purpose may be excluded by general language, but only if it is
in writing and conspicuous.” Accordingly, disclaimers of warranties for a
particular purpose are probably issues for the court only. Section 1201(10)
provides: “A term or clause is conspicuous when it is so written that a
reasonable person against whom it is to operate ought to have noticed it. A
printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is
conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger
or other contrasting type or color. But in a telegram any stated term is
‘conspicuous.’ Whether a term or clause is ‘conspicuous’ or not is for decision
by the court.”
• The California Uniform Commercial Code Comment to section 2316 observes
that “oral language of disclaimer may raise issues of fact as to whether reliance
by the buyer occurred and whether the seller had ‘reason to know’ under the
section on implied warranty of fitness for a particular purpose.”
• The California Uniform Commercial Code Comment to section 2316 states that
the three exceptions listed under subdivision (3) “are common factual situations
in which the circumstances surrounding the transaction are in themselves
sufficient to call the buyer’s attention to the fact that no implied warranties are
made or that a certain implied warranty is being excluded.”
• The California Uniform Commercial Code comment to section 2316 states:
“Paragraph (a) of subsection (3) deals with general terms such as ‘as is,’ ‘as
they stand,’ ‘with all faults,’ and the like. Such terms in ordinary commercial
usage are understood to mean that the buyer takes the entire risk as to the
quality of the goods involved.”
• The California Uniform Commercial Code comment to section 2316 states: “In
order to bring the transaction within the scope of ‘refused to examine’ in
paragraph (b), it is not sufficient that the goods are available for inspection.
There must in addition be a demand by the seller that the buyer examine the
goods fully.”
• The California Uniform Commercial Code comment to section 2316 states:
“The particular buyer’s skill and the normal method of examining goods in the
circumstances determine what defects are excluded by the examination.”
• “Interpretation of a written document, where extrinsic evidence is unnecessary,
is a question of law for the trial court to determine.” (Temple, supra, 148
Cal.App.3d at p. 1095, internal citations omitted.)
• “A disclaimer of warranties must be specifically bargained for so that a
disclaimer in a warranty given to the buyer after he signs the contract is not
binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11,
19–20 [120 Cal.Rptr. 516].)
• “[A]ny disclaimer or modification must be strictly construed against the seller.”
(Hauter v. Zogarts (1975) 14 Cal.3d 104, 119 [120 Cal.Rptr. 681, 534 P.2d
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses,§ 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.24
(Matthew Bender)